By John Riches
A small nonprofit called Delaware Strong Families (DSF) wanted to disseminate a voter guide on issues of interest to the organization. Such voter guides—basically pamphlets that suggest how voters should mark their ballots—are a common way for organizations to inform the public about policy issues. DSF's guide included its analysis on a range of social issues, including government funding for Planned Parenthood and the regulation of internet gambling.
As a traditional nonprofit, under federal law, DSF cannot and does not engage in electoral politics -- that is, support or oppose elected candidates. However, they can and do engage on policy issues and other civic and social matters.
Despite the organization's lack of involvement in candidate elections, Delaware law required DSF to report the names and addresses of its donors to the government if they donated more than $100. That meant DSF had to choose whether to publish its voter guide or subject its donors to government reporting requirements.
At the same time, the Delaware News Journal, the state's largest newspaper and one of the highest-circulating newspapers in the United States, regularly comments on political issues and expressly endorses political candidates. In the 2016 election, it endorsed a candidate for governor, Congress, County executive, and mayor. All those candidates are Democrats.
The Delaware News Journal is owned by Gannett Inc., a for-profit corporation that is one of the largest newspaper publishing companies in the United States. Among other interests, it owns USA Today and nearly 110 local media organizations in 34 states, providing content to more than 110 million readers nationwide.
Despite the tremendous political influence the News Journal and its parent company exercise, the law that required DSF to register with and turn over its private donor information to the government does not apply to the News Journal. That is because Delaware law specifically exempts the traditional news media from campaign finance regulations.
In other words, a small nonprofit that does not and cannot engage in electoral politics is prevented from even discussing policy issues without having to report donor names and other identifying information to the government while, at the same time, a large and powerful for-profit media empire is free to not only discuss political issues, but to expressly advocate for the election or defeat of political candidates without any campaign finance restrictions whatsoever.
The First Amendment protects the collection and dissemination of truthful speech about lawful activity. But the distinction -- and differential treatment -- between nonprofit communications and those of the traditional media is increasingly unworkable.
Both nonprofit organizations and the traditional media have played a central role in American life by informing citizens about matters of public concern, including the workings of government. In fact, the press and nonprofit associations have a historically complementary relationship in our republic—both provide information about important public issues, and serve as a means for citizens to join together to advocate for political and social change.
But legislatures and the courts have treated these groups very differently, and that disparity is growing. When nonprofits discuss matters of public concern, they are increasingly required to disclose the names, addresses, and other private information about their donors, ostensibly to ensure corporations and other organizations are not anonymously influencing public policy.
This is a problem for the nearly one million nonprofits in the United States that engage in policy matters. These organizations include schools, churches, hospitals, art centers, public radio stations, research foundations, and other groups dedicated to a variety of issues—from environmental improvements to the provision of legal services for indigent litigants.
Private donors support these charitable activities through voluntary contributions. Many charitable donors prefer to keep their donations and identities private.
Their reasons range from religious obligations to a desire to receive fewer solicitations to fears that donations to groups engaged in controversial debates might subject them to threats and violence from those who disagree. An enormous amount of evidence shows that donors to some nonprofit organizations are subject to retaliation and harassment, as are the donors' families and businesses.
The media, on the other hand, enjoys broad exemptions from these sorts of disclosure requirements and other campaign finance laws, even though some of the asserted government interests in mandating donor disclosure apply with even greater force to media activities than to those of the nonprofit world. This difference in treatment is both unprincipled and increasingly impractical as mass communications change the way people collect and share information.
As a threshold matter, there is no principled reason to give special treatment to some corporations—particularly large, politically influential, for-profit conglomerates—that other corporations, especially small nonprofits, do not receive. This is especially true considering the purpose of the press exemption, which is to protect the collection and dissemination of information—a role that has been vitally served by many organizations, not just the institutional press, since the beginning of our republic.
Additionally, with the rise of web-based media, the line between traditional and nontraditional media is increasingly difficult to define. Distinguishing between a New York Times interactive webpage and Facebook, or the Wall Street Journal and SCOTUSBlog, appears increasingly arbitrary. In fact, the Supreme Court itself has acknowledged that "regulations that discriminate among media . . . often present serious First Amendment concerns."
Courts should be leery of laws that differentiate between traditional media and new media, or between some speakers and others—and legislatures should either cease imposing regulations on speech by nonprofits, or expand statutory "press exemptions" to include all organizations that disseminate information. Either way, government cannot justify imposing burdensome limits on some categories of speech and not on others. Speech is speech, and ought to be protected across the board.
The institutional press has no monopoly on the First Amendment—or on the collection and dissemination of information that the amendment protects.
Millions of organizations, including nonprofits, serve just as vital a role in informing the public about the salient political issues of our time. None of these organizations should be forced to disclose to the government confidential information about their supporters.
Disclosure mandates that exempt the press should be revised to include nonprofits that communicate to the public about public policy issues, and litigants should seek to challenge disclosure mandates that include press exceptions.
The First Amendment was not written to protect an industry. It was written to protect the free flow of information in our republic. This is as important today as it was when the printing press was the primary way that activists, investigators, scholars, and political candidates spoke to the public. The law should afford all speakers—including nonprofit organizations and their supporters—the greatest possible protection.
Jon Riches is director of national litigation for the Goldwater Institute's Scharf-Norton Center for Constitutional Litigation.